Category: Uncategorized

No End in Sight?

More than half of older Americans who are unemployed are in the ranks of the long-term unemployed.

The Government Accountability Office reports that 55 percent of unemployed older workers have been unemployed for longer than six months, compared to a rate of about 35 percent for younger workers. Over one quarter of unemployed older workers have been out of work for a year or more.

According to the New York Times, older workers saw the largest proportionate increase in unemployment in the economic downturn of any age group. The number of unemployed people between ages 50 and 65 more than doubled. And older workers are unemployed much longer than other age groups. A study last year by the Pew Charitable Trusts found that 44 percent of workers unemployed at least a year were 55 or older.

In fact, the chance of a long-term unemployed worker finding a new job in this jobless recovery are poor to nonexistent. Many will be forced to exhaust their life savings to survive. Many will be forced to claim Social Security as soon as they turn age 62, suffering a 25 percent cut in benefits for the rest of their lives.

One reason that older Americans are stuck in the dead end of long-term unemployment is that they are more vulnerable to discrimination than other Americans. This is a problem because many older Americans are laid off or fired because they earn higher salaries, are more costly to medically insure or they simply don’t fit within a youth culture that is deemed more desirable.

Why are older Americans more vulnerable to discrimination?

In 2009, the U.S. Supreme Court issued a ruling that gutted the Age Discrimination in Employment Act. That ruling could be – but has not been – fixed by the U.S. Congress.

In Gross v. FBL Financial Services, the Supreme Court upended the longstanding and established burdens of proof in employment discrimination cases. The Court held that plaintiffs alleging age discrimination must prove that age was the “but for” or deciding factor in an employment decision. In contrast, plaintiffs alleging discrimination based on race, sex, national origin, and religion need only prove that discrimination was a “motivating factor.” The ruling places age discrimination plaintiffs in the impossible position of having to disprove any other factor the employer claims it relied upon.

The new “but for” standard is so high that many employment lawyers today won’t take age discrimination cases.

The rationale for this ruling was that Congress did not amend the ADEA when it amended Title VII of the Civil Rights Act in 1991 to allow plaintiffs to prevail if they could show that discrimination was a “motivating factor” for the adverse employment action.

In 2012, Senators Tom Harkin, D-Iowa, and Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vermont, proposed the Protecting Older Workers Against Discrimination Act (POWADA), a bill that is aimed at restoring rights stripped from older workers by the Gross decision. The bill went nowhere.

POWADA was reintroduced in July but is presently given very slim chance of passage. (Readers are urged to contact their legislators!)

Human Toll

Research shows that older Americans were three times more likely to become unemployed because they lose their jobs, while younger workers were three times as likely to be unemployed because they are looking for a first job or reentering the workforce, perhaps after finishing college.

Job loss has a devastating affect on the retirement security of older workers. They cannot contribute to 401k plans or are forced to draw down their accounts. They have less time to recoup their losses to prepare for retirement than younger workers.

An October 2011 survey by the American Association of Retired Persons of workers age 50 and over found that nearly a quarter said that they had used all of their savings during the past three years.

The human toll of long term unemployment is devastating. Job loss is associated with illness and a higher rate of suicide, especially for unemployed older male workers who were previously steadily employed.

In 1967,, the U.S. Congress passed the ADEA because of widespread and overt discrimination against older Americans. When President Lyndon Johnson signed the ADEA into law he said it would help insure that the most qualified applicant got the job. Would President Johnson even recognize the ADEA today as it is being interpreted by federal judges in courthouses across the country? Probably not. The complex burden-shifting that resulted from Gross leads away from substantive issues like “qualifications” and results in the dismissal of most of age discrimination cases on pre-trial motions.

One wonders how much longer older Americans will suffer before the U.S. Congress acts enacts POWADA and the Obama administration adopts policies addressing the plight of older Americans who are disproportionately represented among the long term unemployment.

Chart from Government Accountability Office Report

The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The statute not only applies to hiring, discharge, and promotion, but also prohibits discrimination in employee benefit plans such as health coverage and pensions. In addition to employers, the ADEA also applies to labor organizations and employment agencies.

In the private sector, the most dangerous question often is: “How much are you being paid?”

While the U.S. Congress fiddles, New Jersey Gov. Chris Christie recently signed into law a bill making it illegal for New Jersey employers to retaliate if a worker discloses job pay information when the disclosure is made for the purpose of investigating whether someone is being paid unfairly. Job pay information includes workers’ job titles, occupational categories, pay and benefits, and status as members of protected categories.

Nearly half of all workers nationally are either contractually forbidden or strongly discouraged from discussing their pay with their colleagues, according to a 2011 report by the Institute for Women’s Policy Research Institute (IWPR).

Even when women have the same title as men, they tend to earn less and the disparity widens if women are Latino or African American.

Senate Majority Leader Loretta Weinberg, D-Teaneck, is quoted as stating: “If we are serious about pay equity, we have to allow workers to freely discuss their job conditions … By allowing employees to ask their coworkers about their salaries, benefits or working conditions, we open a door for those who believe they are being treated unfairly to learn the truth and get their fair share.”

Paycheck Fairness

The NJ law mirrors the proposed Paycheck Fairness Act, legislation that was passed by the U.S. House of Representatives in 2009 but was blocked by Republicans in the U.S. Senate. The act, which was reintroduced this year, would close loopholes in the federal Equal Pay Act of 1963 and provide additional incentives for employers not to discriminate in pay.

A 2010 report from the US Census Bureau reported that for every dollar a man earned, a woman only earned 77 cents–for equal work production. As women get older, this wage gap widens. The National Women’s Law Center reports that when women start working–between ages 15 and 24–the wage gap is relatively small. Yet by the time they start to reach the critical years leading to retirement, ages 45 to 64, women are earning only 71% of what men do.

Discrimination (rather than differences in occupations, industry, experience or education) is believed to be responsible for about 40 percent of the wage gap. According to the IWPR, in the federal government, where pay rates are transparent and publicly available, the gender wage gap is only 11 percent.

At the current rate, it is projected that the wage gap will not disappear for 45 years.

They Got Rich; We Paid for the Roads

Labor Day 2013 could be a depressing given the sad state of labor in the United States.

So here are some inspiring quotes from U.S. Sen. Elizabeth Warren (D-Mass), mostly courtesy of the AFL-CIO, which has invited Warren to be a keynote speaker at its national convention in Los Angeles next month. Warren has proven to be a clear voice for lower and middle class workers since her election to the U.S. Senate.

“There is nobody in this country who got rich on their own. Nobody. You built a factory out there—good for you. But … You moved your goods to market on roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory….You built a factory and it turned into something terrific or a great idea—God bless! Keep a hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.”—September 2011.

“People feel like the system is rigged against them, and here is the painful part, they’re right. The system is rigged.”—September 2012.

“Hardworking men and women who are busting their tails in full-time jobs shouldn’t be left in poverty.”—August 2013..

“Look around. Oil companies guzzle down the billions in profits. Billionaires pay a lower tax rate than their secretaries, and Wall Street CEOs, the same ones that direct our economy and destroyed millions of jobs still strut around Congress, no shame, demanding favors, and acting like we should thank them. Does anyone here have a problem with that?”—September, 2012.

“It is critical that the American people, and not just their financial institutions, be represented at the negotiating table.”—Summer 2009.

“Americans are fighters. We’re tough, resourceful and creative, and if we have the chance to fight on a level playing field, where everyone pays a fair share and everyone has a real shot, then no one—no one can stop us.”—September 2012.

“Washington is wired to work well for those on Wall Street who can hire lobbyists and lawyers and it doesn’t work very well for the rest of us.”—October 2011.

“If you’re caught with an ounce of cocaine, the chances are good you’re going to jail….Evidently, if you launder nearly a billion dollars for drug cartels and violate our international sanctions, your company pays a fine and you go home and sleep in your own bed at night.”—March 2013.

“Corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die. And that matters. That matters because we don’t run this country for corporations, we run it for people.”—September 2012.

“Nobody’s safe. Health insurance? That didn’t protect 1 million Americans who were financially ruined by illness or medical bills last year.”—February 2005.

In addition to Warren, the AFL-CIO convention has invited as a guest speaker the recently appointed Secretary of Labor Thomas Perez.

Here are a couple of other Warren quotes worth remembering:

“Instead of helping our students, the government is making a profit on student loans. That is wrong. It is morally wrong. That is obscene.”

“I introduced the Bank on Students Loan Fairness Act to give students the same low-interest rates that the big banks get. If those 0.75% rate is good enough for the big banks, it’s good enough for our kids who are trying to get an education. And as long as the government continues to make hundreds of billions in profits off our students, I’ll keep fighting.”

Wal-Mart may have dodged the bullet for alleged systemic sex discrimination dating back at least a decade.

Last week a federal judge in San Francisco denied class certification in a statewide class action lawsuit filed by five female Wal-Mart employees in California on behalf of 150,000 past and present female workers in that state who allegedly were denied equal treatment in pay and promotions.

This is the second defeat for plaintiffs seeking to file class action lawsuits against Wal-Mart on a state or regional basis. Wal-Mart won dismissal of a lawsuit in October that sought to represent female Wal-Mart workers in Texas.

The U.S. Supreme Court last year rejected a 12-year-old class action lawsuit filed by six female employees of Wal-Mart on behalf of 1.6 million past and present female workers around the country.

What’s left for the plaintiffs?

Class action lawsuits often are the only realistic way of addressing systematic discrimination by corporations because of the high cost of litigation, the defendant’s “deep pockets,” and the relatively paltry amount of damages typically available in individual cases.

Underwhelmed

Senior U.S. District Judge Charles R. Breyer ruled the California lawsuit failed to meet the U.S. Supreme Court’s criteria for a collective legal action, including evidence of a company policy or decisions by higher-ups that affect all workers in the class. He the statistics “still do not reflect significant proof of a general policy of discrimination.”

Judge Breyer concluded the following evidence from the plaintiff’s is “underwhelming”:

About three-quarters of the stores paid women, on average, the same hourly rates as men. (Note: of course, this means that a quarter of Wal-Mart stores pay women, on average, a lower hourly rate than men. PGB)

Eighty-six female Wal-Mart employees in California described personal experiences of discrimination – that represents only one woman for every 1,745 members of the proposed statewide class. (It’s unclear what number would be sufficient for class action status- PGB)

The plaintiff’s produced evidence that Wal-Mart’s then-chief executive, Thomas Coughlin, in a 2004 meeting attended by district managers who approve pay and promotional decisions, said the key to success in choosing leaders was “a single focus to get the job done,” and that “men are better at focus.”

The plaintiffs said they had evidence of disparities throughout California and biased statements by top managers.

The U.S. Supreme Court ruled unanimously in June 2011 that the original lawsuit against Wal-Mart in 2001 failed to show any company-wide policy or attitude of discrimination and said there were too many women in too many jobs at Wal-Mart to wrap into one lawsuit. The high court overturned lower court decisions that allowed nationwide class-action status.

Judge Breyer said the California lawsuit “is essentially a scaled-down version of the (nationwide) case with new labels on old arguments.” He said the plaintiffs challenged “the discretionary decisions of hundreds of decision-makers,” which, according to the U.S. Supreme Court, cannot be the basis of a class-action suit.

Breyer said the remarks attributed to former Wal-Mart CEO Coughlin may have come from an outside consultant and were made after the period covered by the lawsuit.

Breyer, 72, was appointed to the federal bench in 1997 by then-President Bill Clinton. His brother is U.S. Supreme Court Justice Stephen Breyer.

In 2010, the New York Times published an article on a 1995 memorandum issued by Wal-Mart’s then counsel, Akin Gump Strauss Hauer & Feld, that reported widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores.

The NYT reported the memo said that “women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women..”

By one measure, the memo states “. . . men were five and a half times as likely as women to be promoted into salaried, management positions.” Furthermore, in 1993, men employed by Wal-Mart as department managers were paid an hourly rate 5.8 percent higher than women in those positions.

The Memo estimated that Wal-Mart’s potential legal exposure in a class-action sex discrimination suit was $185 million to $740 million for 1993 alone.

The overall disparities in job assignments, the memo states, were “statistically significant and sufficient to warrant a finding of discrimination unless the company can demonstrate at trial that the statistical disparities are caused by legitimate, nondiscriminatory factors.”

At this point it appears that Wal-Mart has dodged that bullet.

Wal-Mart was “pleased” by California Judge Breyer’s ruling and said it has a had a “strong policy” against discrimination in place for many years.

In the past, this blog has questioned why sexual harassment is not a criminal offense in the United States as it is in France.

Now the U.S. Equal Opportunity Commission (EEOC) has filed a second complaint against a business owner who is characterized as a “serial” sexual harasser because he paid $780,000 to five women in 2003 to settle a sexual harassment complaint.

Fuller allegedly forced Nichole Wilkins to quit in July 2011 after he sexually assaulted her by grabbing and squeezing both her breasts from behind while pinning her against her desk. The EEOC says this assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller.

Fuller then allegedly created a sexually hostile work environment for Wilkin’s friend and co-worker, Beverly Mulcahey. Shortly after Wilkins notified Fuller in October 2011 that she intended to file an EEOC charge of discrimination, Fuller fired Mulcahey for poor performance.

Déjà Vu

The EEOC sued Fred Fuller Oil Company in 2003 and settled that case in July 2005, winning $780,000 in relief for five women. As part of the settlement, the company agreed to undergo training aimed at conforming to Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

Markus L. Penzel, trial attorney in the EEOC’s Boston Area Office, said in a press release last month, “The Commission characterized Fred Fuller as a ‘serial sexual harasser’ in its first lawsuit. Unfortunately, that still seems to be true.”

With sincere respect to Mr. Penzel, it is more than unfortunate that additional women were allegedly targeted by Fuller. If the EEOC’s complaint is true, these women not only suffered emotional distress but were hounded out of their jobs, resulting in a loss of their financial well-being.

The women who worked for Fred Fuller Oil Co. probably have little in common with Sherly Sanburg, the billionaire Harvard University graduate and chief financial officer of Google. She implies in a recent bestselling book that women are partly responsible for their own lack of equality in the workplace.

The reality is that victims of sexual harassment often are single mothers living paycheck-to-paycheck, with few other employment options, and college students who are trying to earn money to pay their tuition. These women are vulnerable, often not believed, sometimes blamed, almost always powerless and utterly disposable.

Get Serious!

There’s been a lot of discussion about sexual harassment in the military as a result of publicity surrounding alleged improper sexual conduct of military officers who are responsible for protecting women from sexual harassment. Surveys show that a third of American women report experiencing sexual harassment in the workplace.

Employers have done far too little to halt sexual harassment and the EEOC lacks the resources to effectively address this problem.

It appears that Fred Fuller was not deterred by a monetary fine. He also did not appear to benefit from education about what constitutes improper sexual conduct in the workplace or training on how to comply with Title VII of the Civil Rights Act. What might have deterred Mr. Fuller?

France’s Law

France’s General Assembly enacted a new sexual harassment law on July 31, 2012 that includes criminal penalties of up to three years in prison.

New articles in the French Labor Code and the Penal Code state:

“Harassment is the fact of imposing on a person, in a repetitive fashion, statement or behavior of a sexual connation which violate a person’s dignity by virtue of their degrading or humiliating character or create as concerns such person an intimidating, hostile or offensive situation.”

Under the French law, it is considered an “aggravating circumstance” if a perpetrator of workplace sexual harassment is abusing his or her authority.

If Fred Fuller had snatched the purse of his first victim, he would have been lucky to get just a warning. If he had continued this behavior, he would have spent time in jail. That’s because stealing a purse is a crime.

Shouldn’t it be a crime to steal someone’s peace of mind and financial livelihood?

Schools Measure Emotional Intelligence

Question: Tom felt anxious, and became a bit stressed when he thought about all the work he needed to do. When his supervisor brought him an additional project, he felt ________________ .

overwhelmed

depressed

ashamed

self-conscious

thrilled to be presented with a new challenge

How you answer this question is a reflection of your emotional intelligence. (Hint – Tom is not thrilled.)

There have been several news stories recently that indicate the educational institutions which educate America’s business leaders are finally recognizing the importance of emotional intelligence in leadership.

The Yale School of Management (SOM) is studying the role of emotional intelligence in predicting leadership ability. SOM tested its current incoming class for emotional intelligence and will use the results to determine whether traits like empathy and the ability to read people are predictive of future success.

Furthermore, all full-time MBA students at SOM will be given the opportunity to take the Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT) in SOM’s first-year leadership program. Students can analyze their emotional intelligence scores to learn about how to better exert personal influence and maintain self-control as a leader.

Emotional intelligence is thought to help leaders and managers understand how others around them are feeling and to alter their management style to better achieve goals. Leaders with high emotional intelligence are able to read people, understand and manage emotions, communicate effectively, and adapt quickly to other cultures.

The 141-question MSCEIT test, measures the four branches of emotional intelligence:

Identifying Emotions – the ability to recognize how you and those around you are feeling.

Facilitating Thought– the ability to generate an emotion, and then reason with this emotion.

Understanding Emotions – the ability to understand complex emotions and how emotions transition from one stage to another.

Managing Emotions – the ability to manage emotions in yourself and in others.

One question, for example, is to ask a test-taker to rate the emotion expressed in a photograph of a face

In addition to the SOM, Notre Dame and Dartmouth also are administering emotional intelligence tests to future business leaders attending those schools.

The MCEIT was developed by Yale’s president-elect, Peter Salovey, and David R. Caruso, a management psychologist and special assistant to the dean of Yale College, and John D. Mayer, a psychology professor at the University of New Hampshire.

Lack of E.I.

One trait common among managers who abuse and bully their staff appears to be a lack of empathy, which is a facet of emotional intelligence.

In fact, some researchers blamed the recent Wall Street collapse partly on a small number of business leaders who had many or all of the traits of a psychopath and who acted without regard to the well-being of their employees, customers and the American public.

There is overwhelming evidence that employers who hire or tolerate abusive managment invite expensive litigation, needless and costly turnover, lost work time and poor morale, higher health costs, etc.

Many of us have experienced the horrors of a bad workplace but what does a good workplace look like?

Jim Clifton, the chairman and chief executive officer of the Gallup poll organization, says he knows, based upon decades of polling data.

What follows, according to Clifton, are the 12 most important, and most predictive, workplace elements. If these elements are in place, the employer has an engaged, healthy workforce where employees innovate, work hard and achieve results. If these elements are not in place, it is likely that workers are disengaged, less healthy, less productive, and less invested in the success of the company.

In the last seven days, I received recognition or praise for doing good work.

My supervisor, or someone at work, seems to care about me as a person.

There is someone at work who encourages my development.

At work, my opinions seem to count.

The mission and purpose of my company makes me feel my job is important.

My associates are committed to doing quality work.

I have a best friend at work.

In the last six months, someone at work talked to me about my progress.

In the last year, I have had opportunities at work to learn and grow.

According to Clifton, a major reason that workforces are not engaged is bad management or what he calls “management from hell.”

Gallup research has found that the top 25% of employees — the best-managed — versus the bottom 25% in any workplace — the worst-managed — have nearly 50% fewer accidents and have 41% fewer quality defects. What’s more, he says, people in the top 25% versus the bottom 25% incur far less in healthcare costs.

In April 2010 the Massachusetts’ state legislature unanimously passed what is called the toughest anti-bullying law in the nation with respect to schools, Title 12, Chapter 71, Section 370. The law was precipitated by two cases of Massachusetts’ youths committing suicide after allegedly being bullied. The legislation requires school employees to report and principals to investigate all instances of bullying. It should be noted that the Massachusetts’ law requires “repeated” incidents of bullying, which is not required in all bullying laws (ex. Quebec, Australia). PGB

DEFINITION OF BULLYING IN MASSACHUSETTS SCHOOL ANTI-BULLYING LAW

“Bullying”, the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that:

(i) causes physical or emotional harm to the victim or damage to the victim’s property;

(ii) places the victim in reasonable fear of harm to himself or of damage to his property;

(iii) creates a hostile environment at school for the victim;

(iv) infringes on the rights of the victim at school; or

(v) materially and substantially disrupts the education process or the orderly operation of a school. For the purposes of this section, bullying shall include cyberbullying.

Bullying is a costly management problem. Yet, all too often, instead of being the first line of defense, the Human Resources Department reinforces the bullying and further undermines the victim. The result is costly turnover, poor morale, and expensive litigation. Stopping bullying makes economic sense for employers. Does your company have an anti-bullying policy? Is it strictly enforced, even when the bully is a highly valued employee? Are employees encouraged to report bullying and do you insure they are protected from retaliation? If not, you are inviting needless expense and risk. – PGB

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“Bully bosses are the bane of management. They are the ones who take credit for their subordinates’ ideas, engage in abusive behavior, humiliate employees in public, talk behind people’s backs, and send others to do their dirty work. Bullies often make the numbers; that’s why it’s hard to get rid of them. When bullies resist all help, they must be removed from the organization. FROM: Article by John Baldoni, Harvard Management Update; Sept. 2005, Vol. 10 Issue 9, p1-3, 3p.

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THE TAB FOR EMPLOYERS

It is astonishing that American employers tolerate workplace bullying. Never-mind the devastation that bullying wreaks on the target, bullying wreaks havoc on the company’s bottom line. Bullying results in higher health costs, needless turnover, lower morale and motivation, lost work hours, absenteeism, etc. etc. etc.

Consider:

According to Christine Pearson at UNC-Chapel Hill and Christine Porath of USC’s Marshall School of Business (The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It (2009)) targets of bullying react in the following ways:

-48% decreased their work effort,

-47% decreased their time at work,

-38% decreased their work quality,

-66% said their performance declined,

-80% lost work time worrying about the incident,

-63% lost time avoiding the offender

Bullying causes needless turnover.

According to the Level Playing Field Institute, more than two million managers and professionals flee their jobs every year as a result of workplace unfairness, including bullying. The cost of replacing just one $8-per-hour employee can range from $3,500 to $25,000, depending on the industry. The exodus of two million workers costs businesses $64 billion.

Research shows that bullying also contributes to turnover among witnesses of bullying, who suffer emotional distress that is almost as great as that experienced by the victims of bullying. Furthermore, more than a quarter of employees who leaves because of unfairness do not recommend the employer to potential employees, and many do not recommend the company’s products and services to others.

Bullying results in costly litigation.

Even if the employer wins, it can cost the employer tens of thousands of dollars to defend the lawsuit.

The employer doesn’t always win. In Indiana, a medical technician was awarded $325,000 after successfully suing a surgeon who bullied him in an operating room for Intentional Infliction of Emotional Distress and assault.

A lawsuit, and attendant publicity, can be harmful to a business in terms of public perception and the ability to attract quality employees.

2. Obtain a senior management commitment to a bully-free environment. Organizations need to demonstrate in visible and continuous ways that senior management is committed to addressing and eradicating the bullying phenomenon. Because of the power differential that exists in the relationship between the bully and the targeted employee, the reluctance to report bullying appears to be linked to the belief that nothing will be done and also to the fear of retaliation if something is done.

3. Develop an anti-bullying policy.“Any policy that you develop should be customized to fit your organization’s specific culture, values, and needs. An anti-bullying policy will generally address the following types of issues: your company’s commitment to a culture of mutual respect and zero-tolerance of bullying, clear definitions of bullying, managerial responsibilities, complaint procedures, any support or counseling offered to the target, assurances that all complaints are taken seriously and will be treated confidentially, a ‘no retaliation’ provision, and who to contact to get further information.”

4. Create monitoring, investigation, and complaint systems, disciplinary procedures, and follow-up measures.“Whether or not you elect to develop and implement an anti-bullying policy, a specific internal group or department needs to be identified as being responsible for receiving complaints and educating your employees. An investigation is a necessary response to a bullying complaint. All complaint resolution systems must include an effective disciplinary procedure that spells out the consequences for failure to abide by the company’s policy, including progressive discipline.”

5. Train employees about conduct expectations. “Periodic training of employees must be conducted to ensure a culture of respect and accountability, and also that all employees understand the company’s expectations about their workplace conduct – what is and is not acceptable – and the consequences for failing to observe these requirements.”

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Research shows that Human Resources often creates an environment where bullying “remains unchallenged, allowed to thrive or actually encouraged in an indirect way.” If the victim seeks help, HR protects the employer’s interests rather than to seek a fair and just resolution. “The absence of collective voice … renders employees completely vulnerable, with no avenues for redressal … Issues of justice and morality inevitably arise … With managers being judge and jury combined, the correctness of managerial decisions remains largely unchecked … .” FROM: Premilla D’Cruz and Ernesto Noronha, Protecting My Interests: HRM and Targets’ Coping with Workplace Bullying, The Qualitative Report Vol.15, Number 3 (May 2010) http://www.nova.edu/ssss/QR/QR15-3/dcruz.pdf.

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In the case of despots, you need to depose them; in the case of bullies, you need to boot them. Few are worthy of rehabilitation. Power for them is both a means to an end as well as the end itself. “ – John Baldoni, 12 Steps to Power Presence: How to Assert Your Authority to Lead, (2010)

* Patricia G. Barnes is an attorney with experience in both domestic violence and employment law. She is available for consultation, training on creating a healthy and positive management environment for employees and speaking engagements.

This is the 2010 version of the Healthy Workplace Bill,, drafted by David C. Yamada, Professor, Suffolk University Law School, and supported by the Workplace Bullying Institute. This proposal was sharply criticized by international scholars and others as being far less protective of worker rights than legislation in other industrialized countries. The bill has been improved since 2010 but still is problematic. In any case, after more than a decade, it appears unlikely that a state-by-state approach is a viable option to the problem of workplace bullying. This blog supports a federal national approach, recognizing that workers who may need the most protection live in so-called “pro business” states that will never adopt a workplace anti-bully protections. Also, workplace bullying is an important health and safety issue for workers and the United States lags behind other industrialized countries in addressing the problem. Workers need help now! PGB

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THE HEALTHY WORKPLACE BILL

By David C. Yamada, Professor, Suffolk University Law School

Section 1 – Preamble

(a) Findings

The Legislature finds that:

(1) The social and economic well-being of the State is dependent upon healthy and productive employees;

(2) Between 37 and 59 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment alone;

(4) Abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and increases in medical and workers’ compensation claims;

(5) If mistreated employees who have been subjected to abusive treatment at work cannot establish that the behavior was motivated by race, color, sex, sexual orientation, national origin, or age, they are unlikely to be protected by the law against such mistreatment;

(6) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status as that provided for under employment discrimination statutes;

and,

(7) Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior or to provide adequate relief to employees who have been harmed by abusive work environments.

(b) Purpose

It is the purpose of this Chapter:

(1) To provide legal relief for employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to abusive work environments; (2) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.

Section 2 – Definitions

(a) Abusive work environment. An abusive work environment exists when the defendant, acting with malice, subjects an employee to abusive conduct so severe that it causes tangible harm to the employee.

(1) Abusive conduct. Abusive conduct is conduct, including acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the defendant’s conduct. Abusive conduct may include, but is not limited to: repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit a employee’s known psychological or physical vulnerability. A single act normally will not constitute abusive conduct, but an especially severe and egregious act may meet this standard.

(2) Malice. Malice is defined as the desire to cause pain, injury, or distress to another.

(d) Constructive discharge. A constructive discharge shall be considered a termination, and, therefore, an adverse employment action within the meaning of this Chapter. A constructive discharge exists where: (1) the employee reasonably believed he or she was subjected to abusive conduct; (2) the employee resigned because of that abusive conduct; and, (3) prior to resigning, the employee brought to the employer’s attention the existence of the abusive conduct and the employer failed to take reasonable steps to correct the situation.

Section 3 – Unlawful Employment Practices

(a) Abusive Work Environment. It shall be an unlawful employment practice under this Chapter to subject an employee to an abusive work environment as defined by this Chapter.

(b) Retaliation. It shall be an unlawful employment practice under this Chapter to retaliate inany manner against an employee who has opposed any unlawful employment practice under this Chapter, or who has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this Chapter, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions.

Section 4 – Employer Liability and Defense

(a) An employer shall be vicariously liable for an unlawful employment practice, as defined by this Chapter, committed by its employee.

(b) Where the alleged unlawful employment practice does not include an adverse employment action, it shall be an affirmative defense for an employer only that:

(2) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.

Section 5 – Employee Liability and Defense

(a) An employee may be individually liable for an unlawful employment practice as defined by this Chapter.

(b) It shall be an affirmative defense for an employee only that the employee committed an unlawful employment practice as defined in this Chapter at the direction of the employer, under threat of an adverse employment action.

Section 6 – Affirmative Defenses

It shall be an affirmative defense that:

(a) The complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity;

(b) The complaint is based on a reasonable performance evaluation; or,

(c) The complaint is based on a defendant’s reasonable investigation about potentially illegal or unethical activity.

Section 7 – Relief

(a) Relief generally. Where a defendant has been found to have committed an unlawful employment practice under this Chapter, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to, reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorney’s fees.

(b) Employer liability. Where an employer has been found to have committed an unlawful employment practice under this Chapter that did not culminate in an adverse employment action, its liability for damages for emotional distress shall not exceed $25,000, and it shall not be subject to punitive damages. This provision does not apply to individually named employee defendants.

Section 8 – Procedures

(a) Private right of action. This Chapter shall be enforced solely by a private right of action.

(b) Time limitations. An action commenced under this Chapter must be commenced no later than one year after the last act that constitutes the alleged unlawful employment practice.

Section 9 – Effect on Other Legal Relationships

The remedies provided for in this Chapter shall be in addition to any remedies provided under any other law, and nothing in this Chapter shall relieve any person from any liability, duty, penalty or punishment provided by any other law, except that if an employee receives workers’ compensation for medical costs for the same injury or illness pursuant to both this Chapter and the workers’ compensation law, or compensation under both this Chapter and that law in cash payments for the same period of time not working as a result of the compensable injury or illness or the unlawful employment practice, the payments of workers’ compensation shall be reimbursed from compensation paid under this Chapter.